Manlove v. Bender

| Ind. | May 15, 1872

Downey, J.

This action was brought by Manlove, as receiver of the Farmers and Merchants’ Insurance Co., a mutual insurance company, against Bender, £0 recover on two premium notes executed by him to the company. The defendant answered by general denial and several special paragraphs. Issue was taken on the special paragraphs by general denial thereof. The issues were tried by a jury, and there was a verdict for the defendant. The plaintiff moved the court for a new trial, for these reasons: first, because the verdict is contrary to the evidence; second, because the verdict is not sustained by sufficient evidence; third, because the verdict is contrary to law; fourth, fifth, and sixth, because the court overruled the demurrers to the second, third, and fourth paragraphs of the defendant’s answer, respectively.

J. R. Troxell, W. R. Manlove, and R. A, Hill, for appellant. C. Denby and D. B. Kumler, for appellee.

This motion was overruled, and final judgment for the defendant was rendered on the verdict of the jury.

The only error assigned in this court is the refusal of the court to grant a new trial. The first, second, and third reasons assigned for a new trial may be considered together. We have examined the evidence as set out in the bill of exceptions, and are of the opinion that the verdict was right. The evidence, among other things, fails to show that the losses to be paid occurred during the time of the membership of the defendant in the company. See Manlove v. Naw, ante, p. 289. This fact must be alleged and-proved, in order to render the maker of the premium note liable to an action for the assessment. The fourth, fifth, and sixth causes for a new trial are not reasons for which a new trial can be granted, and no question is presented to us relating to the sufficiency or insufficiency of the paragraphs of the answer by such a mode of making up the record and assigning errors.

The judgment below is affirmed, with costs.

Pettit, J., dissents.